Where Law Ends, Tyranny Begins

In my post last week on my visit two weeks ago to the National Gallery of Art, I mentioned in passing my walk on that extremely cold Washington, D.C. afternoon from our hotel down Pennsylvania Avenue to the gallery, noting that I passed the Justice Department headquarters along the way. The building was completed in 1935 and re-named after Robert Kennedy in 2001. It is imposing, like many of its neighbors, and handsome in a way. But the feature that caught my eye that afternoon was the famous saying etched onto the facade that gives this post its title.

(Who said it? William Pitt the Elder, twice British prime minister in the 1750s and 1760s. Or so it seems. But a century earlier, John Locke wrote in The Second Treatise of Civil Government that “Wherever law ends, tyranny begins.” I’ll leave it to others to sort out priorities here.)

Hmm, I wondered, what did John Ashcroft think when he read those words every day? Or Alberto Gonzales? Or for that matter, not to pick on Bush’s appointees only, what does Eric Holder think?

Two days after my stroll down Pennsylvania Avenue, the question of what Mr. Holder thinks was brought into sharper focus for me through a blog post Glenn Greenwald wrote on the Obama administration’s handling of civil liberties.

Part of the context for Greenwald’s note was the article in the NYT the day before about pressure on the Obama administration not to try Khalid Shaikh Mohammed in Manhattan, or in a civilian court at all: “But overwhelming opposition from New York politicians concerned about costs, disruptions and security now has the Justice Department scrambling to come up with a Plan B, even as Congress threatens to block money to pay for a criminal 9/11 trial altogether. That could force the administration to revive the very option that the president and Attorney General Eric H. Holder Jr. had rejected: military commissions at Guantánamo for the 9/11 plotters.”

Greenwald compares the Reagan administration’s approach to terrorists to that under Bush/Cheney and Obama:

It was also Ronald Reagan who signed the Convention Against Torture in 1988 — after many years of countless, horrific Terrorist attacks — which not only declared that there are “no exceptional circumstances whatsoever” justifying torture, but also required all signatory countries to “ensure that all acts of torture are offences under its criminal law” and — and Reagan put it — “either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.” And, of course, even George W. Bush — at the height of 9/11-induced Terrorism hysteria — charged attempted shoe bomber Richard Reid with actual crimes and processed him through our civilian courts.

How much clearer evidence can there be of how warped and extremist we’ve become on these matters? The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe. Merely advocating what Reagan explicitly adopted as his policy — “to use democracy’s most potent tool, the rule of law against” Terrorists — is now the exclusive province of civil liberties extremists. In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike.

Perhaps more striking is the news reported by Dana Priest in the Washington Post two weeks ago that “Obama approved a Dec. 24 strike against a compound [in Yemen] where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said.” [Emphasis mine; the JSOC is the US military’s Joint Special Operations Command.]

Did you catch that? As Priest later explains (emphasis mine again),

After the Sept. 11 attacks, Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests, military and intelligence officials said. The evidence has to meet a certain, defined threshold. The person, for instance, has to pose “a continuing and imminent threat to U.S. persons and interests,” said one former intelligence official.

The Obama administration has adopted the same stance. If a U.S. citizen joins al-Qaeda, “it doesn’t really change anything from the standpoint of whether we can target them,” a senior administration official said. “They are then part of the enemy.”

Both the CIA and the JSOC maintain lists of individuals, called “High Value Targets” and “High Value Individuals,” whom they seek to kill or capture. The JSOC list includes three Americans, including Aulaqi, whose name was added late last year. As of several months ago, the CIA list included three U.S. citizens, and an intelligence official said that Aulaqi’s name has now been added.

Greenwald commented on this in a post a week ago (as did many others). As usual he captured the essence better than I possibly could:

That’s basically giving the President the power to impose death sentences on his own citizens without any charges or trial. Who could possibly support that?

But even if you’re someone who does want the President to have the power to order American citizens killed without a trial by decreeing that they are Terrorists (and it’s worth remembering that if you advocate that power, it’s going to be vested in all Presidents, not just the ones who are as Nice, Good, Kind-Hearted and Trustworthy as Barack Obama), shouldn’t there at least be some judicial approval required? Do we really want the President to be able to make this decision unilaterally and without outside checks? Remember when many Democrats were horrified (or at least when they purported to be) at the idea that Bush was merely eavesdropping on American citizens without judicial approval? Shouldn’t we be at least as concerned about the President’s being able to assassinate Americans without judicial oversight? That seems much more Draconian to me.

…

Obama’s presidential assassination policy … literally makes Barack Obama the judge, jury and executioner even of American citizens. Beyond its specific application, it is yet another step — a rather major one — towards abandoning our basic system of checks and balances in the name of Terrorism and War.